STATE OF NEW JERSEY v. RANDOLPH C. McLEOD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1922-05T41922-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RANDOLPH C. McLEOD,

Defendant-Appellant.

____________________________________________________________

 

Submitted October 4, 2006 - Decided October 31, 2006

Before Judges Kestin and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth, Indictment Nos.

05-04-0822, 05-05-1112, and 05-05-1192.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Cecelia Urban, Assistant Deputy

Public Defender, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for

respondent (Linda K. Danielson, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence, defendant Randolph McLeod entered into a negotiated plea agreement with the State. Pursuant to the plea agreement, defendant pled guilty to third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count two of Indictment No. 05-05-1112); third-degree theft by deception, N.J.S.A. 2C:20-4 (count one of Indictment No. 05-05-1192); and third-degree attempt to commit burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2(a)(1) (count one of Indictment No. 05-04-0822). In exchange for defendant's guilty pleas, the State agreed to recommend that the remaining counts of the indictments be dismissed and that defendant be sentenced to a five-year prison term, concurrent on all counts, and concurrent with any sentence imposed on Middlesex County Indictment No. 05-04-0497, and any violation of probation charge in Monmouth County. Defendant was sentenced consistent with the plea agreement and appropriate fines and penalties were also imposed.

On appeal, defendant presents the following arguments:

POINT I

THE POLICE UNLAWFULLY ENTERED MS. SCURDY'S APARTMENT TO EXECUTE THE ARREST WARRANT FOR MCLEOD, BECAUSE THEY DID NOT HAVE CONSENT TO SEARCH, A SEARCH WARRANT, AN EXIGENCY, OR OBJECTIVELY REASONABLE GROUNDS TO BELIEVE THAT MCLEOD RESIDED THERE. HENCE, THE TRIAL COURT SHOULD HAVE GRANTED THE SUPPRESSION MOTION. U.S. CONST., AMENDS. IV AND XIV; N.J. CONST., ART. I, 7 [(1947)] (Partially Raised Below)[.]

A. SEVERAL OF THE COURT'S FINDINGS WERE NOT SUPPORTED BY EVIDENCE PRESENTED AT THE SUPPRESSION HEARING (Not Raised Below)[.]

B. THE STATE'S EVIDENCE FAILED TO PROVE THAT THE POLICE HAD OBJECTIVELY REASONABLE GROUNDS TO BELIEVE THAT MR. MCLEOD WAS RESIDING IN MS. SCURDY'S APARTMENT RATHER THAN AT THE NEPTUNE ADDRESS STATED IN THE NEWLY GRANTED ARREST WARRANT[.]

1. NEITHER THE POLICE NOR THE TRIAL JUDGE HAD REASON TO IGNORE THE NEPTUNE ADDRESS SHOWN ON THE TWO-WEEK-OLD FREEHOLD ARREST WARRANT[.]

2. THE POLICE FAILED TO CONDUCT THEIR OWN INDEPENDENT DUE DILIGENCE INVESTIGATION TO DETERMINE WHETHER MCLEOD RESIDED AT SCURDY'S APARTMENT OR AT THE NEPTUNE ADDRESS SHOWN ON THE ARREST WARRANT[.]

3. BECAUSE THE POLICE FAILED TO CONSIDER FACTORS, DEEMED RELEVANT IN [STATE V. MILLER, 342 N.J. SUPER. 474 (2001)], THEY DID NOT HAVE A REASONABLE BASIS FOR BELIEVING THAT MCLEOD RESIDED WITH SCURDY[.]

4. THE POLICE DID NOT CONSIDER OTHER FACTORS FUNDAMENTAL TO FORMING A REASONABLE OPINION AS TO WHERE MCLEOD LIVED[.]

THE [STATE V. WHITE, 512 N.E.2d 677 (1987)] ANALYSIS

THE WHITE ANALYSIS APPLIED TO THE FACTS OF THIS CASE

C. SINCE PROPER SUPPRESSION OF THE EVIDENCE FOUND AND SEIZED DURING THE UNLAWFUL EXECUTION OF THE ARREST WARRANT AT MS. SCURDY'S RESIDENCE WOULD OBVIATE THE BENEFIT MR. MCLEOD RECEIVED UNDER HIS PLEA AGREEMENT, THIS CASE MUST BE REMANDED TO AFFORD HIM THE OPPORTUNITY TO WITHDRAW HIS GUILTY PLEA AND RENEGOTIATE WITH THE STATE[.]

Based on our review of the record and the applicable law, we conclude that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm, adding these brief comments.

Four witnesses testified at the suppression hearing, which took place on July 21 and 22, 2005. The trial court found that the testimony of the three police officers was more credible than defendant's testimony, and its findings of fact and conclusions of law included the following:

Let me deal with the facts. On February 24th, 2005, members of the Long Branch Police Department went to 55 Woodrow Wilson Homes, Long Branch, New Jersey to execute an arrest warrant for the defendant, Randolph McLeod. Though the defendant's address was listed on the warrant as Neptune Township, the police acted on information that he had been living in Long Branch . . . .

. . . .

Neighbors in Long Branch had complained to the police that he was living in the apartment of Ms. Sk[u]rdy at the Woodrow Wilson Housing Projects, and was, in fact, disruptive, and that he was seen there at all hours of the day and night.

The police also received information from the citizen informant who told them that Mr. McLeod was living in Woodrow Wilson Homes, and was actually there on the day in question. During a prior conversation with Lt. Johnson, the defendant pretty much admitted that he was staying or living at the Woodrow Wilson project when Lt. Johnson tried to get Mr. McLeod to come in and surrender like a gentleman on the warrant.

. . . .

The question here is whether the police had an objectively reasonable basis to believe that the defendant resided in the dwelling. First, they had information from a citizen informant that he resided there. They had information from other citizens, which Lt. Johnson had gathered from the housing project where he regularly patrols, that Mr. McLeod was there all hours of the day and night, and being disruptive. You also have the information and the conversation between Lt. Johnson and Mr. McLeod himself concerning Mr. McLeod staying at the apartment and living there.

. . . .

[T]here were also observations by Lt. Johnson of Mr. McLeod being there all hours of the day and night. In sum, these facts certainly and clearly rose to more than an objectively reasonable basis to believe that the defendant lived in the apartment, despite his contention that he was merely a guest.

Now, the State received this information and received information from the citizen informant that I referred to that Mr. McLeod was actually in the residence in question. And within 20 to 25 minutes a six man police force went, arrest force went to 55 [Woodrow] Wilson to actually arrest Mr. McLeod at the premises.

Our review of a trial court's fact-finding function is limited. "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). "If the trial court acts under a misconception of the applicable law, however, the appellate court need not give such deference." State v. Brown, 118 N.J. 595, 604 (1990); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

In a similar case, involving the execution of an arrest warrant at a third-party's dwelling without a search warrant, we stated: "in the absence of consent or exigency, an arrest warrant is not lawfully executed in a dwelling unless the officers executing the warrant have objectively reasonable bases for believing that the person named in the warrant both resides in the dwelling and is within the dwelling at the time." State v. Miller, supra, 342 N.J. Super. at 479. In this case, the record fully supports the finding that the Long Branch police officers had an objectively reasonable belief that defendant was living at 55 Woodrow Wilson and that he would be present at the dwelling when the arrest warrant was executed. We therefore affirm the order denying defendant's motion to suppress substantially for the reasons stated by the trial court.

Affirmed.

 

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A-1922-05T4

October 31, 2006